State v. Gallagher

• Decision Date: 22 December 2005
• Docket Number: No. 03-082.,03-082.
• Citation: 125 P.3d 1141,330 Mont. 65,2005 MT 336
• Parties: STATE of Montana, Plaintiff and Respondent, v. Ernest George GALLAGHER, Defendant and Appellant.
• Court: Montana Supreme Court

125 P.3d 1141

2005 MT 336

330 Mont. 65

STATE of Montana, Plaintiff and Respondent, v. Ernest George GALLAGHER, Defendant and Appellant.

No. 03-082.

Supreme Court of Montana.

Submitted on Briefs June 8, 2005.

Decided December 22, 2005.

COPYRIGHT MATERIAL OMITTED

For Appellant: Chad Wright, Chief Appellate Defender, Helena, Montana.

For Respondent: Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Robert J. Long, County Attorney; Mitchell A. Young, Deputy County Attorney, Polson, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Ernest George Gallagher appeals from both the verdict and judgment entered by the Twentieth Judicial District Court, Lake County, finding him guilty of driving under the influence of alcohol and two counts of criminal endangerment, and sentencing him as a persistent felony offender. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 (1) In light of Defendant's failure to object at trial, should this Court undertake plain error review of the challenge to the District Court's failure to give a specific unanimity instruction?

¶ 4 (2) In failing to object to the general unanimity instruction or to offer a specific instruction, did Defendant's counsel render ineffective assistance of counsel?

¶ 5 (3) Did the District Court impose a sentence in violation of §§ 46-18-501 and 46-18-502, MCA, by sentencing the Defendant as a persistent felony offender without entering findings of fact?

BACKGROUND

¶ 6 At approximately 8:00 p.m. on the evening of March 17, 2002, while watching television in his home in Charlo, Montana, Richard Borden heard a loud crash. Upon hearing the clatter, he sprang from his chair to see what was the matter. He flew to the dining room, where, to his great surprise, had appeared a white flat-bed pickup truck. The truck had plowed through the wall, broken a window, and upon Borden's discovery, was still spinning its wheels in the dining room. Sparks and exhaust fumes from the vehicle triggered the smoke alarms in Borden's house, and he acted quickly to turn off the electrical power to avoid further problems. Before Borden could get the pickup's license plate number, the driver was able to disentangle the truck and drive away. Nine downed fence posts and broken cement work completed the outdoor portion of the damages. Borden was not able to see the driver.

¶ 7 Moments after havoc left the Borden residence, it confronted Amber Doty on Charlo's First Avenue, where Doty was proceeding in her vehicle. The white truck drove through a parking lot and careened into Doty's lane, and fortunately, Doty was able to swerve off the road to avoid a collision. She ended up in a parking lot, while the erratic truck sailed past. The truck came within feet of hitting Doty's car, and according to Doty, Gallagher was the driver.

¶ 8 Finally, the white truck came to rest on the lawn of Joe Geldrich, a law enforcement officer with U.S. Fish & Wildlife. Geldrich first perceived the truck's headlights in his driveway. He went outside to investigate, and found Gallagher, obviously intoxicated, sitting in the front seat of the truck, with the engine running. Geldrich turned the engine off, took Gallagher inside his house, and called authorities. Arriving minutes later, authorities conducted a breathalyzer test, which indicated Gallagher's blood alcohol level was.302, over three times the legal limit. Most fortunately, perhaps by the day's lucky charms, no one was physically injured in the episode.

¶ 9 On March 27, 2002, the State charged Gallagher with driving under the influence of drugs or alcohol (DUI) pursuant to § 61-8-401(1)(a), MCA, and two counts of criminal endangerment pursuant to § 45-5-207(1), MCA, for the harrowing incidents involving Borden and Doty. Because Gallagher had been convicted of four previous DUIs, with the most recent conviction within the previous five years, the State gave notice that it would seek to have Gallagher sentenced under the persistent felony offender statute.

¶ 10 Gallagher's case went to trial in September of 2002. The District Court's instructions to the jury included a general unanimity instruction, but the court did not give separate specific unanimity instructions for the two criminal endangerment counts. Gallagher's counsel did not object to the proffered instructions, nor offer a specific unanimity instruction.

¶ 11 The jury returned guilty verdicts on the DUI charge and the two criminal endangerment charges on September 10, 2002, and the court sentenced Gallagher pursuant to the persistent felony offender statute on October 30, 2002. Instead of receiving a maximum of thirteen months in prison with five years suspended under the DUI statutes, Gallagher received a total of forty years in prison with twenty years suspended.

¶ 12 Gallagher filed a notice of appeal on December 16, 2002. Thereafter, his counsel moved to withdraw and filed a brief pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, perceiving the appeal to be frivolous. On October 21, 2003, this Court dismissed Gallagher's appeal pursuant to the motion. However, upon consideration of Gallagher's petition for writ of habeas corpus, we concluded his appeal should proceed, and reinstated it on June 8, 2004.

STANDARD OF REVIEW

¶ 13 We generally review jury instructions in criminal cases to determine whether the instruction fully and fairly instructed the jury. State v. Maloney, 2003 MT 288, ¶ 14, 318 Mont. 66, ¶ 14, 78 P.3d 1214, ¶ 14. However, where as here, jury instructions are not objected to at trial, we must first decide whether exercising plain error review is appropriate. State v. Gray, 2004 MT 347, ¶ 13, 324 Mont. 334, ¶ 13, 102 P.3d 1255, ¶ 13.

¶ 14 This Court "may discretionarily review claimed errors that implicate a criminal defendant's fundamental constitutional rights, even if no contemporaneous objection is made...." State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817. Such review, while exercised sparingly and on a case-by-case basis, is rooted in this Court's inherent power under Montana's Constitution. State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, ¶ 20, 77 P.3d 224, ¶ 20; Finley, 276 Mont. at 135-38, 915 P.2d at 214-15. As stated in Finley, we will exercise plain error review where failing to review the claimed error may (1) result in a manifest miscarriage of justice, (2) leave unsettled questions of fundamental fairness, or (3) compromise the integrity of the judicial process. Finley, 276 Mont. at 137, 915 P.2d at 215.

¶ 15 A claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47. Therefore, we review such claims de novo. Turner, ¶ 47.

¶ 16 Finally, we review criminal sentences to determine whether the sentence is legal and within the parameters of the relevant statute. State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. However here, as in Montoya, Appellant challenges not the sentence per se, but the District Court's designation of him as a persistent felony offender under the applicable statutory scheme. See Montoya, ¶ 16. The District Court's designation of Appellant is a question of statutory interpretation. As such, our review is de novo, the question being whether the District Court's designation was correct. Montoya, ¶ 16.

DISCUSSION

¶ 17 In light of the Defendant's failure to object at trial, should this Court undertake plain error review of the challenge to the District Court's failure to give a specific unanimity instruction?

¶ 18 The first question is whether an exercise of plain error review is appropriate under the circumstances. At trial, the District Court gave a general unanimity instruction and told jurors that Appellant was charged with two counts of criminal endangerment. It provided the jury with a verdict form which simply asked the jury to find Gallagher guilty or not guilty of Count II, criminal endangerment, and Count III, criminal endangerment. The court did not specifically instruct the jury as to unanimity regarding the specific facts relating to each count of criminal endangerment. Gallagher charges that he was entitled to that instruction to protect his constitutional trial rights and asks that we exercise plain error review in light of his counsel's failure to object at trial or offer a specific unanimity instruction.

¶ 19 Previously, we have twice declined to exercise plain error review of a district court's failure to give a specific unanimity instruction where the defendant did not object or request such an instruction at trial. See Gray, ¶ 22; State v. Harris, 1999 MT 115, ¶ 12, 294 Mont. 397, ¶ 12, 983 P.2d 881, ¶ 12. In Harris, the appellant argued that because each of the charges against him involved lengthy time periods, the jury needed to be specifically instructed that they must unanimously agree to the facts constituting the offense for each charge. Harris, ¶ 10. In Gray, the appellant argued, similar to the argument here, that the general unanimity instruction was insufficient where there were multiple potential victims to a single charge of assault. Gray, ¶¶ 16-17. In each instance, however, we determined that the cases did not warrant plain error review. Harris, ¶ 12; Gray, ¶ 22.

¶ 20 Although a specific unanimity instruction may well have been appropriate in this case, we cannot conclude from the circumstances that the omission compels the exercise of plain error review. Based on the evidence and testimony presented at trial, the only two potential victims of criminal endangerment were Richard Borden and Amber Doty. Gallagher endangered Borden when he crashed into Borden's dining room, and he endangered Doty when he forced her to swerve off the road to avoid a...